Plaintiff v Firstnamed Defendant

1 This proceeding is one of four judicial review proceedings issued by the plaintiff, Ms Austin, in this Court in 2018. While each of these proceedings is directed at different orders made by judicial officers in the Magistrates' Court and the County Court, they each concern the same underlying subject matter, being the prosecution of Ms Austin for offences said to have been committed by her in her communications with a Mr Oscar Dobbs, a former student at the secondary school at which she used to teach. It is not necessary for present purposes to go into any great detail into the alleged offences and charges, which are based upon alleged stalking and breaches of intervention orders (which Ms Austin says should not be in force), save to say that Ms Austin is sorely aggrieved at the tortuous path that this prosecution has taken since she was first arrested in 2016. Again, it is not necessary for present purposes to sheet home responsibility for that delay to any person or institution, save to say that, using her own words, Ms Austin has lost her 'faith and trust in human nature, the police, the courts and the justice system'. This has no doubt flavoured the submissions she has made regarding the current application.

2 For a more detailed account of the proceedings brought in this Court and the underlying proceedings in the Magistrates' Court and the County Court, see the decision of Derham AsJ in Austin v Dwyer,[1] in respect of his decision to grant summary judgment in favour of the defendant (who is also the defendant in this proceeding) ('informant') with respect to a decision by a magistrate to adjourn a fully contested summary hearing of criminal charges laid by the informant against Ms Austin from May 2018 to January 2019 ('summary hearing').

3 On the day that Derham AsJ delivered his judgment in the proceeding referred to above, the parties were also before another magistrate for a mention with respect to the pending summary hearing, which was listed to commence on 21 January 2019 on an estimate of seven days. The summary hearing was listed on the basis that the charges against Ms Austin were to be heard and determined by a magistrate, despite some of the offences with which Ms Austin was charged being indictable offences. It appears that counsel previously briefed on Ms Austin's behalf had consented to the charges being dealt with summarily, rather than before a judge and jury. However, at the hearing before the magistrate on 10 December 2018, Ms Austin stated that she had not consented to the charges being dealt with summarily.[2] This position was confirmed at a special mention heard on 14 January 2019, after Ms Austin had issued this proceeding seeking judicial review of the decision made by the Magistrates' Court on 10 December 2018. The practical consequences of what occurred on 14 January 2019 will be considered later in these reasons.

4 On 10 December 2018, a magistrate made the following orders ('10 December orders'):

Pursuant to s 15YAB of the Cth Crimes Act 1914, I declare that both witnesses Dobbs and Carlon be declared 'special witnesses' in relation to all charges both Cth and State - see s 15Y(5) of the Act. Pursuant to s 15YG of the Act, the Court orders that a person be appointed to appear on the defendant's behalf for the purposes of cross-examining the special witnesses should the accused be unrepresented by choice. She has been informed that she may not cross-examine such witnesses & the matter should proceed.

5 The orders were made pursuant to s 15YAB of the Crimes Act 1914 (Cth) ('Act'). This section is included in Part IAD of the Act, which is headed 'Protecting vulnerable persons'. Section 15YAB provides as follows:

Special witnesses

Meaning of special witness

(1) In a proceeding for a Commonwealth offence, the court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:

(a) a disability; or

(b) intimidation, distress or emotional trauma arising from:

(i) the person's age, cultural background or relationship to a party to the proceeding; or

(ii) the nature of the evidence; or

(iii) some other relevant factor.

Note: Such a declaration can also be made in a related proceeding (see subsection 15Y(5)).

(2) A declaration under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the proceeding.

Orders that certain protections apply to a special witness

(3) In a special witness proceeding, the court may order that one or more of the following sections apply to a special witness:

(a) section 15YG (about unrepresented defendants);

(b) section 15YH (about represented defendants);

(c) section 15YI (about closed-circuit television);

(d) section 15YL (about alternative arrangements);

(e) section 15YM (about use of video recordings);

(f) section 15YO (about accompanying adults);

(g) section 15YP (about excluding people from the courtroom).

(4) An order under subsection (3) may be made on the court's own initiative or on application by or on behalf of the special witness.

6 Section 15Y of the Act defines the proceedings to which the provisions of Part IAD apply. Section 15Y(3) states:

This Part contains special rules that can apply for special witnesses involved in proceedings for any Commonwealth offence.

7 Some of the charges faced by Ms Austin are with respect to Commonwealth offences. The practical consequences of Mr Dobbs and Ms Carlon (who is Mr Dobbs' mother) being declared special witnesses is that Ms Austin, who is self-represented and firmly intends to remain so, would not have been able to crossexamine them at the pending summary hearing. The presiding judicial officer would have the power to grant leave for Ms Austin to crossexamine the special witnesses under s 15YG of the Act, but might ordinarily be expected to appoint a lawyer funded by Legal Aid to ask the special witnesses questions on her behalf. Ms Austin, understandably, given that Mr Dobbs in particular is a critical witness, and given her poor opinion of lawyers generally, considers this situation to be most unsatisfactory, and illustrative of the manner in which she says the prosecution and the courts have dealt with her case generally.

8 At the hearing on 10 December 2018, the informant relied upon written submissions, an extract of which is reproduced below:

The prosecution is concerned for both complainants, in particular DOBBS, should they give evidence in open court. The fear of both complainants is reported as being ongoing due to the nature of the charges. The proceeding seeks to protect these witnesses from further harm in a court room via protection from cross examination. The accused is selfrepresented in this matter.

The prosecution submits that DOBBS could not give satisfactory evidence unless protected as he is a young person who at the time of this offending was a student of the accused, therefore there is an imbalance of power. Further, the nature of the evidence will be distressing to recount as it has occurred over a long time and caused anxiety. It would also be distressing for DOBBS to be subject to unfair cross examination from the accused in considering it is alleged he is a victim of hers.

The prosecution submits that CARLON could not give satisfactory evidence unless protected as she is the mother of DOBBS and will have to relive the torment of her son from a mother's perspective. As DOBBS, this will be distressing to recount as it has also caused her anxiety. It would cause further stress and anxiety if she were to be allowed to be subjected to crossexamination from the accused.

Should the prosecution be successful in declaring DOBBS and CARLON special witnesses, a further order pursuant to section 15YG of the Crimes Act 1914 would be sought. This provision will prohibit the accused from cross examining DOBBS and CARLON without legal representation.[3]

The prosecution submits that DOBBS and CARLON should be declared special witnesses as the legislation is designed to protect vulnerable persons from further harm arising from self-represented persons. The accused should further be denied leave to cross examine DOBBS and CARLON without court appointed legal representation.

9 Ms Austin also relied upon written submissions in opposition to the application. After referring to the relevant provisions of the Act, and the Explanatory Memorandum concerning the relevant amendments to the Act in 2013, she submitted that the primary purpose of the relevant provisions was to protect vulnerable persons. She submitted as follows:

I have not been able to find any cases where a person has been declared a 'special witness' under this legislation. The only cases I have found of a person being declared a 'special witness' under legislation from States other than Victoria, have involved children, sexual offences, bikie gangs, murder, kidnapping and violence. This case does not involve slavery, human trafficking, sexual offences, violence or threats. It does not involve children. It does not involve anyone with the characteristics of a 'special witness' as per section 15YAB of the Crimes Act 1914 (Cth) namely, an adult with a disability or an adult enduring intimidation, distress or emotional trauma arising from: their age, cultural background, relationship to a party to the proceeding, the nature of the evidence or some other relevant factor.

Oscar Dobbs is almost 23 years old, he has suffered no harm or disadvantage as a result of my alleged crimes. Threats and/or violence are not involved in my case. Neither Oscar Dobbs nor Colleen Carlon have ever provide they have had anything to fear from me. The statement emailed to me on 27 November 2018 and signed by Giovanni Lazzaro, falsely states that Oscar Dobbs was a student of mine at the time of my alleged offending. This comment, along with the rest of the statement, is yet another attempt by Detective Trent Dwyer to mislead a court and to pervert the course of justice.

The application to have Oscar Dobbs and Colleen Carlon declared to be 'special witnesses' should be dismissed. There are no grounds on which to declare them to be 'special witnesses'. The application is an attempt to further prejudice my case and to obstruct my access to a fair and just hearing.

10 At the conclusion of the hearing, the learned Magistrate ruled as follows:

I have read the prosecution statements of both witnesses. Dobbs was a student at the school where the accused was a teacher. In his statement, Dobbs indicates in summary that he has suffered stress, anxiety and harassment from the accused's conduct as well as concerns about his personal safety. In her statement, Carlin (sic) the mother of Dobbs, indicates her stress and harassment caused by the conduct of the accused and also the concerns and anxiety of her son in relation to the conduct by the accused.

I received a reply to the plaintiff's application from the defendant who appeared in person. In my view, the submissions which were read out in full by the accused are not relevant save as for paragraphs 13-15, 19-21. The remainder is in my view immaterial, argumentative or go to the credit of the witnesses which is not my function in this application. The defendant is unrepresented is prohibited from crossexamining such witness without legal representation (s. 15YG). The defendant was informed that the court could have a person appointed on her behalf to cross-examine the witnesses. Given that is so, I see no prejudice to the accused if I grant the application.

I repeat that if the accused appears unrepresented by choice then the accused will not be able to cross-examine the two witnesses the subject of this application. The application is accordingly granted in relation to all offences of which the defendant is charged.[4]

11 In her originating motion filed on 17 December 2018, Ms Austin sought to set aside the 10 December orders on the following grounds:

1. [the magistrate] erred by having the prosecution called to the court room without the appellant also being called and by consulting with the prosecution, in the court room, without the appellant being present.
2. [the magistrate] erred in making a decision that is unreasonable and is not supported by the evidence.
3. [the magistrate] erred in concluding that the appellant would not be prejudiced and the presentation of her case would not be adversely effected (sic) by the granting of the 'special witness' order.
4. [the magistrate] erred in making a decision that is in error and that will result in a substantial miscarriage of justice.
5. The miscarriage of justice that has been a feature of these proceedings as a result of previous errors and irregularities has been compounded by the errors made by [the magistrate].

12 Ms Austin filed a lengthy and detailed affidavit in support of her application for judicial review. A substantial part of this affidavit traversed matters which are the subject matter of her other proceedings in this Court and elsewhere, and are thus not directly relevant to the issues in this application, but nevertheless provided useful background to the current application. Again, it is not necessary for me to canvass these matters in detail, or indeed at all, for the purpose of the current application. Further, it is not necessary for me to consider in any detail the merits of the application for judicial review, save to say that, while it is generally difficult to establish legal error in a decision concerning matters of practice and procedure, and the authorities indicate a reluctance to intervene in criminal proceedings in their preliminary stages[5], it could not be said, subject to the discussion which follows, that the application has no real prospects of success. The application for judicial review is listed for trial on 9 August 2019.

13 As noted above, at the hearing on 14 January 2019, Ms Austin confirmed that she did not consent to the charges being determined summarily. Accordingly, the matter has been listed for a committal mention on 2 April 2019. It appears that Ms Austin must by close of business on 19 March 2019 inform the Office of Public Prosecutions ('OPP'), which now has carriage of the prosecution in place of the informant, whether she seeks to crossexamine any of the prosecution witnesses prior to the magistrate hearing the committal determining whether to commit Ms Austin to trial. As will be discussed later, s 124 of the Criminal Procedure Act 2009 (Vic) ('CPA') provides that, at a committal hearing, no witness shall be crossexamined by the accused without the leave of the Court. Section 125 also specifies what matters must be taken into account when determining whether to grant leave.

14 On 15 January 2019, the lawyer for the informant wrote to Ms Austin, as follows:

We have been informed that at a special mention on 14 January 2019 you withdrew your consent to the contested hearing listed to commence on 21 January 2019 proceeding summarily in the Magistrates Court. We are informed you wish the hearing to proceed by way of committal, followed by a trial before a judge and jury in the County Court of Victoria. The committal mention in your matter is listed to take place on 2 April 2019.

You have filed an application for judicial review under Order 56 of the Supreme Court Rules 2015, in relation to the decision of Magistrate Gilligan made on 10 December 2018, declaring Mr Dobbs and Collen Carlon special witnesses in the summary hearing. This summary hearing is now no longer to take place, given your withdrawal of consent to summary jurisdiction.

A Directions Hearing in relation to your application is listed on 6 February 2019 in the Supreme Court of Victoria. Can you please advise us whether you now intend to discontinue your application for judicial review of Magistrate Gilligan's decision.

Would you please respond to this letter by 22 January 2019. Any further work done by us on your application and court attendance on behalf of our client will be the subject of a costs application against you.

15 Later on 15 January 2019, Ms Austin replied as follows:

If you can confirm that the matter now being heard in the County Court makes the special witness decision invalid and can confirm that its existence cannot, in any way, be used in the County Court proceedings, then I will withdraw the judicial review application for S ECI 2018 02859.

If you cannot confirm these things, then I will need to get that information confirmed via the judicial review process (or have the judicial review proceed).

16 On 16 January 2019, Ms Spowart replied as follows:

Dear Ms Austin

I refer to your email of 15 January 2019 below.

As I act for the Respondent, I am unable to provide you with legal advice about any issue connected with your case.

I strongly suggest you obtain independent legal advice on the issues you raise in your email.

As requested in my letter of 15 January 2019, would you kindly reply to that letter by 22 January 2019. I have reattached that letter to this email for your information.

17 Later on 16 January 2019, Ms Austin replied as follows:

As you have been unable to guarantee that the prosecution will not be seeking to have Oscar Dobbs and Colleen Carlon declared 'special witnesses' in the County Court proceedings, I will not be withdrawing the above judicial review application.

Given the past behaviour of the prosecution, my withdrawing this judicial review application will only result in me having to apply for another judicial review. It is better to have the issue decided sooner rather than later. I am not prepared to have more time wasted by the prosecution making unfounded applications to the County Court.

If you cannot guarantee that the prosecution will not be making any 'special witness' applications (or any other application that restricts my ability to present my case in court), then I will not be withdrawing the above judicial review.

18 This proceeding was listed for directions on 6 February 2019. On 5 February 2019, the informant filed an affidavit sworn on 29 January 2019 where he stated that Ms Austin 'elected that the matter proceed in the indictable stream before a judge and jury'. At the directions hearing, the solicitor for the informant foreshadowed the making of a summary judgment application in this proceeding, which was duly filed on 14 February 2019. Subsequently, Ms Austin filed three further affidavits. The first affidavit, sworn on 7 March 2019, among other things, denied that she had ever consented to the changes being heard summarily. The second affidavit, sworn on 13 March 2019, deposed as to the efforts she had made to obtain a copy of the audio recording of the hearing on 10 December 2018, the cost of obtaining transcript,[6] and her poor financial position. The third affidavit, sworn on 14 March 2019, exhibited court documents listing dates of which she was aware, including 24 in the Magistrates' Court, seven in the County Court, and eight in this Court, and details of the charges brought against her.

19 On the morning of the hearing of the informant's summary judgment application, counsel for the informant handed up a written outline of submissions in support of the application for summary judgment, which included, among other things, the following (footnotes omitted):

At that special mention, the Plaintiff informed the court she did not consent to the proceeding, the subject of the procedural ruling on 10 December 2018, being heard summarily. She informed the Magistrates' Court that she wished for the matters to proceed in the indictable steam (sic), and the outcome to be finally determined by a Judge and Jury in the County Court of Victoria.

This matter is now listed in the indictable stream, with a committal mention date on 2 April 2019.

The orders made by [the magistrate] on December 2018 were made in relation to a summary hearing of the charges against the Plaintiff, listed to commence on 21 January 2019 for a duration of seven days. This hearing involved the indictable charges of Stalking contrary to s 21A(1) Crimes Act 1958 (Vic) and using a Carriage Service to Harass, contrary to s 474.27(1) (Criminal Code Act 1995 (Cth)).

In order for the charges referred to in [8] to be heard summarily, the consent of the accused is required: s 29(2)(b) Criminal Procedure Act 2009 (Vic).

On 14 January 2019, the Plaintiff made it clear to the court that she did not consent to the summary hearing of these charges.

The hearing was then removed from the summary stream and uplifted to the indictable stream. The hearing listed to begin on 21 January 2019 did not proceed.

The order made by [the magistrate] was made in relation to the summary hearing which was to proceed on 21 January 2019. That hearing did not take place and the order made by [the magistrate] is now obsolete. The proceedings in which it was made are now defunct.

It is submitted any decision made by this court in relation to the order of [the magistrate] would be inutile. The proceedings in which it was made are no longer in existence. The order does not have any force in the committal proceedings which will not flow from the Plaintiff's lack of consent to summary jurisdiction as the proceedings in which it was made are defunct.

As the decision sought to be reviewed is a nullity, the application has no real prospect of success. It is submitted that this Court should be summarily dismissed.

20 Accordingly, the nub of the informant's application is as follows: given that the charges against Ms Austin have been uplifted to the 'indictable stream', and the orders were made in respect of a pending summary hearing, the effect of the 10 December orders is spent. It is not necessary to quash the 10 December orders, as they have no practical effect. If Ms Austin wishes to cross-examine the prosecution witnesses at a committal hearing, the OPP will need to make a fresh application to the magistrate presiding over the committal hearing to have Mr Dobbs and Ms Carlon declared special witnesses, based on fresh material, if indeed it chooses to do so. If the matter then proceeds to trial at the County Court, again, a fresh application would need to be made to the trial judge. The 10 December orders would not bind any magistrate hearing the committal proceeding, or the County Court judge responsible for the conduct of a trial. Accordingly, this application for judicial review, concerning as it does a now spent order, has no utility, and as such, the proceeding has no prospects of success, and should be dismissed pursuant to s 62 of the Civil Procedure Act 2010 (Vic). Counsel for the informant made it clear that the application for summary judgment was not pressed on any other basis, such as on the basis that Ms Austin's application for judicial review otherwise lacked merit.

21 Ms Austin relied upon her affidavits and written outline of submissions in support of her contention with respect to the validity of the 10 December orders. She made the following submissions with respect to the informant's summary judgment application:

(a) there is no order or other record which shows that the order has been quashed, or no longer remains effective or in force;

(b) in any event, her application for judicial review ought remain on foot, as the application raises significant issues regarding when a 'special witness' order ought to be made. Given the large number of applications made for intervention orders in this State, the making of the 10 December orders has the potential to expand the application of s 15YAB of the Act to tens of thousands of cases every year in a manner unintended by the legislature; and

(c) granting summary judgment in this application will only cause further delays in a proceeding which has already been beset by many delays and miscarriages of justice, as any subsequent special witness order will inevitably be the subject of an application by her for judicial review.

22 In my view, if it is indeed correct that the 10 December orders are spent, summary judgment should be granted, and the proceeding ought be dismissed. In this proceeding, Ms Austin seeks relief in the nature of certiorari. As observed by Derham AsJ in Austin v O'Dwyer:[7]

Certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds of which the most important are jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.[8]

23 The grounds of review in Ms Austin's originating motion are framed in such a way as, if they were made out, to attract the remedy in the nature of certiorari. However, it is important to recognise that certiorari is a discretionary remedy.[9] It is well established that the Court can refuse relief in the form of certiorari because it would be futile to do so.[10] In the current case, if it is in fact the case that intervening events, being the uplifting of the proceeding to the indictable stream, have led to the 10 December orders having no practical effect, then this application for judicial review would have no real prospects of success.

24 I have reviewed the relevant provisions of the CPA. Notwithstanding the terms of s 162 of the CPA, which provides that the filing of an indictment with the County Court other than a direct indictment does not commence a new criminal proceeding against the accused, I doubt that the 10 December orders would have any continuing effect upon any trial in the County Court, should Ms Austin be committed for trial. The relevant judge, including any judge who makes an order with respect to a pretrial issue (see s 201 of the CPA) or the trial judge, would need to determine afresh any application by the OPP to declare that any prosecution witness be a special witness.

25 The position is less clear at the current point in the proceeding, which remains, at least at this stage, before the Magistrates' Court. The committal proceeding is listed for a committal mention on 2 April 2019. Section 125 of the CPA sets out what the Court may do at a committal mention hearing. Among other things, the Court may hear and determine any application by Ms Austin to crossexamine any or all of the prosecution witnesses. Section 124 of the CPA provides that in order to grant leave, the Court must be satisfied that:

(a) the accused has identified an issue to which the proposed questioning relates, and has provided a reason why the evidence of the witness is relevant to that issue; and

(b) crossexamination of the witness on that issue is justified.

26 Subsection 124(4) sets out the matters the Court must have regard to in determining whether crossexamination is justified. The Court must have regard, among other things, to the need to ensure that 'trivial, vexatious or oppressive crossexamination is not permitted', and 'the interests of justice are otherwise served'.

27 While the submissions of the parties and the discussion in Court during the course of the hearing did not descend to the level of detail regarding how any application for leave, if made by Ms Austin, would proceed, the informant's submissions imply that the magistrate presiding over the committal proceeding would not be bound by the 10 December orders when determining any application by Ms Austin to crossexamine Mr Dobb and/or Ms Carlon, and that the 10 December orders would have no continuing relevance, save that, if it opposed any application by Ms Austin to cross-examine Mr Dobbs and/or Ms Carlon, the OPP could rely upon the matters relied upon by the informant in support of his application for the 10 December orders. Further, if leave were granted, the OPP would then have to determine whether to make an application to have Mr Dobbs and/or Ms Carlon declared special witnesses, which would then be determined upon its merits. One would expect that the applications would be heard concurrently, rather than sequentially. However, there is no certainty that Ms Austin will apply for leave to crossexamine Mr Dobbs and/or Ms Carlon. Similarly, there is no certainty that the OPP will continue to press for Mr Dobbs and/or Ms Carlon to have the status of special witnesses should leave to crossexamine be granted. The OPP may well take a different view than the informant of the appropriateness of making such an application.

28 The above outline accords with the procedure set out in Chapter 4 of the CPA. Further, given that the purpose and function of a committal hearing is quite different from a summary contest, one might expect that the process would start afresh. However, there is nothing in the CPA which expressly contemplates the current situation.

29 In light of the above, on 20 March 2019, my associate wrote to the parties in the following terms:

Her Honour is confident that, notwithstanding section 162 of the Criminal Procedure Act 2009 (Vic) ('Act'), which states that the filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused, the orders made on 10 December 2018 ('10 December orders') would not bind any County Court judge managing or hearing this matter were Ms Austin to be committed for trial. However, while her Honour appreciates that, as a matter of practice, the 10 December orders may lapse now that the matter has moved into the indictable stream, her Honour has not been able to locate any provision of the Act which directly addresses the current situation. While the Act prescribes the different procedures applicable to summary proceedings, committal hearings, and trials before a judge and jury, it appears to be silent as to the status of orders made in contemplation of a summary proceeding after it has been shifted to the indictable stream.

If the parties could identify any provision of the Act, any rule, or practice note which sheds any light on this question, or wishes to make any further submissions with respect to the question of the ongoing application of the 10 December 2018 orders, please file and serve any further submissions by 4.00pm on 25 March 2019.

30 Ms Austin filed further written submissions on 24 March 2019. No further submissions were filed on behalf of the informant. I can infer from the informant's failure to make further submissions that the informant was not able to locate any statutory provision or practice note which would provide the Court (and Ms Austin) with some comfort that the 10 December orders are spent.

31 In her later submissions, Ms Austin repeated a number of the submissions she made at the hearing on 18 March 2019 regarding the public interest in having her application for judicial review determined, the miscarriage of justice she says she has suffered, and the alleged misconduct of judicial officers and the prosecution. I need not repeat those submissions here. In addition, Ms Austin submitted, in summary, as follows:

(a) the terms of ss 15Y(5), 15YNA and 15YNC of the Act indicate that once a special witness order is made, it is to apply to all court proceedings connected with the proceeding in which it is made, including those commenced in a different court;

(b) the prosecution has not stated that it would not pursue special witness orders in any County Court proceeding should Ms Austin be committed for trial;

(c) notwithstanding the submissions of the informant to the effect that the 10 December orders are spent, the 10 December orders remain 'on the record' until quashed or otherwise vacated, and her reputation has been severely damaged by the making of the 10 December orders;

(d) even if she is not entitled to the remedy of certiorari, it is not necessarily the case that she would have no remedy in relation to the 10 December orders should they have been made contrary to law. She may well be entitled to declaratory relief, and referred to the decision of the High Court in Ainsworth v Criminal Justice Commission,[11] in that regard;

(e) she referred to s 192A of the Evidence Act 2008 (Vic), and ss 199(1)(c), 203, 204, and 205(1) of the CPA as support for her contention that the special witness order may have a continuing effect; and

(f) she submitted as follows:

The 'special witness' order affects the outcome of the trial. It stops me from crossexamining key witnesses. It stops me from adducing evidence and highlighting the lack of credibility of those key witnesses. The nature of the restriction these orders place on the defence of my case will also negatively impact any appeal I make. This order guarantees that I will not be able to adequately present my case to the court. More years and more court resources will then be taken up by these proceedings. The credibility of the key witnesses, who are the subject of the 'special witness' order, needs to be challenged at the trial. The evidence regarding the lack of credibility of these witnesses is a key part of my defence and needs to be raised at a trial, not an appeal.

The 'special witness' order made on the 10 December 2018, did not lapse when the matter was moved into the indictable stream. The 'special witness' order has ongoing legal effects and still affects my rights. As a result, the relief sought through this judicial review will produce foreseeable consequences and does not lack utility.

32 Turning now to the other submissions advanced by Ms Austin to resist the application, I do not accept that, notwithstanding that the 10 December orders may no longer have any force, her application should proceed because it raises issues of public significance, the resolution of which will have broader application beyond the current case.

33 I accept that the issues raised in this application for judicial review, which at least in some respects concerns the construction and application of s 15YAB of the Act, may have broader application beyond the facts of the current case, in that some judicial consideration of these issues will provide guidance for judicial officers in determining such applications. However, the difficulty in the current case is that, if it is the case that the order has no practical effect, the Court would, in effect, be asked to give an advisory opinion concerning a hypothetical state of affairs. The authorities make it clear that judicial authority is limited to determining the rights as between parties, or between the State and its citizens, and does not extend to determining hypothetical questions.

34 In AMP Fire and General Insurance Co Ltd v Dixon[12], the Full Court of this Court stated as follows:

It is clearly established by decisions of this Court, following a long line of authority, that the courts will not decide hypothetical questions or give advisory opinions.[13]

35 Further, even if Ms Austin were only to seek a declaration that the 10 December orders were invalid, she would need to show that the declaration would be of practical utility at the time the court made any orders.[14]

36 Finally, Ms Austin resists the application for summary judgment on the grounds that dismissing this proceeding will be productive of further delay. The delay having the charges against Ms Austin finalised is regrettable, but any prior delay would not alter the fact that the 10 December order has no effect, if in fact that is the case. That is not as a result of any conduct by the informant, or the management of the proceeding by the Magistrates' Court, but by Ms Austin's decision to withdraw or withhold her consent to having the charges determined summarily. No criticism is made against Ms Austin in that regard: she is doing what she is entitled to do, and no doubt has sound reasons for adopting this course. But, her decision has had the effect of having the summary hearing set down for 21 January 2019 vacated, and there will be of necessity further delays as the proceeding passes through the committal process.

37 Further, it is not correct for Ms Austin to say that as there would need to be a judicial review of any subsequent decision to not allow her to crossexamine Mr Dobbs and/or Ms Carlon, this proceeding should remain on foot. As noted above, the procedure at a committal hearing is governed by Chapter 4 of the CPA. In order to crossexamine a witness, an accused requires leave. In determining whether to grant leave, a range of matters will need to be taken into account. There is likely to be some overlap with the matters to be taken into account in determining whether a witness is a special witness within the meaning of s 15YAB of the Act, but not a complete overlap. Further, the very nature of the applications differ. In the application resulting in the 10 December orders, the onus was on the informant to persuade the magistrate to deprive Ms Austin of her right to crossexamine witnesses at a trial. In the committal process, the provisions of ss 124 and 125 of the CPA make it clear that the onus will be upon Ms Austin to persuade the presiding magistrate to grant leave to crossexamine any witnesses. Further, even if leave were to be granted, the presiding magistrate is empowered to confine the scope of any crossexamination to a particular issue. Accordingly, were Ms Austin to seek judicial review of any decision to refuse to grant leave to crossexamine any witnesses at a committal hearing, or with respect to any restrictions upon that crossexamination, this Court would be required to address a different statutory scheme, raising quite different issues upon review.

38 Finally, any applications for judicial review in this Court are governed by Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'). Rule 56.01(6) of the Rules provides that:

The Court shall not grant any relief or remedy in the nature of certiorari unless -

(a) a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced; or

(b) if a copy is not produced, the nonproduction is accounted for to the satisfaction of the Court.

39 This proceeding has been brought seeking relief in relation to the 10 December orders. It would simply not be appropriate, even if it were permissible, to keep a proceeding seeking specific relief against a particular order alive simply to accommodate the possibility that, in the future, a magistrate might make another order as a result of a different application under a different statutory framework in a different type of proceeding which Ms Austin may consider to be adverse to her interests, noting that the respondent to any future application would be the Director of Public Prosecutions, not the informant. This ground of opposition is unsustainable.

40 However, I am not convinced, to the degree of satisfaction required to grant summary judgment, that the 10 December orders no longer have any continuing effect. As this is the only basis upon which the informant seeks summary judgment, the application should be dismissed, subject to the right of the informant to make a fresh application should the 10 December orders be vacated prior to the scheduled hearing date of 9 August 2019, or Ms Austin is committed for trial prior to that date, or if it becomes apparent during the course of the committal process that the 10 December orders have no ongoing effect.

41 The statutory provisions referred to by Ms Austin in her later submissions reinforce my view that, notwithstanding s 162 of the CPA, the effect of the 10 December orders is spent in the event that Ms Austin is committed for trial in the County Court. Section 15YAB of the Act states that 'the court may declare a person to be a special witness in relation to the proceeding'. If it were 'a court' that could make the order, I could see how concerns could arise that the 10 December orders would have ongoing effect once the County Court proceeding was underway. Section 192A of the Evidence Act 2008 (Vic) also refers to 'the court' being able to give ruling and make findings in relation to evidentiary matters prior to evidence being adduced. In other words, it is the court in which evidence is to be adduced that is empowered to make preliminary determinations regarding the admissibility of evidence and the status of witnesses, not any court. Further, the provisions of the CPA referred to by Ms Austin all concern pretrial procedures for a trial in the County Court or this Court. Nothing in these provisions supports Ms Austin's concern that the 10 December orders would bind a judge of the County Court managing or hearing a trial. Finally, Ms Austin's concerns about the operation of s 15YNB of the Act are misplaced: this provision is only applicable where the complainant in a proceeding is a child or vulnerable adult, and there is a fresh trial after an appeal or a discontinuance. Mr Dodds is not a 'vulnerable adult complainant' within the meaning of s 15YAA of the Act.

42 Accordingly, if Ms Austin is committed for trial prior to 9 August 2019, the effect of the 10 December orders will be spent, and the informant should have the option of renewing his application for summary judgment. Similarly, if it becomes apparent during the course of the pending committal process that the effect of the 10 December orders is spent, or, alternatively, if the 10 December orders are set aside, the issue of whether summary judgment ought to be granted could be revisited.

43 Accordingly, I will dismiss the informant's application for summary judgment, but grant the informant liberty to apply to bring a fresh application should events transpire that make it clear that the 10 December orders have no ongoing effect. In the circumstances, subject to hearing further from the parties, my preliminary view is that there should be no order as to the costs of the application.

[1] [2018] VSC 770.

[2] See transcript of proceedings on 10 December 2018 ('Transcript'), p 32, pp 49 - 52.

[5] The courts have often held that the declaratory procedure is generally inappropriate to regulate criminal proceedings which are under way but not concluded: see Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; DPP v His Honour Judge Lewis [1997] 1 VR 391. However, the issue of whether declaratory relief or other administrative law remedies ought to be granted in a proceeding of this nature is probably best resolved after a full hearing, rather than on an application for summary judgment.

[6] A transcript of the hearing on 10 December 2018 was provided by the solicitor for the informant on the morning of the hearing.

[7] [2018] VSC 770.

[8] Ibid [23], citing Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6.

[9] See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372.

[10] Aronson & Groves "Judicial Review of Administrative Action" (Lawbook Co, 5th Edition) [12.300].

[11] [1992] HCA 10; (1992) 175 CLR 564, 581.

[12] [1982] VicRp 83; [1982] VR 833, referring to Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VicRp 47; [1970] VR 368.

[14] Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421.